1 Pursuant to 5 TH C IR

. R. 47.5, the Court has determined th a t

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 98-60165

Summary Calendar

ALICE M. SMITH,

Plaintiff - Appellant,

VERSUS

CENTRA BENEFIT SERVICES, INC.,

Defendant - Appellant.

Appeal from the United States District Court

for the Southern District of Mississippi

(3:96-CV-929-B-N)

March 25, 1999

Before DAVIS, DUHÉ, and PARKER, Circuit Judges.

Per Curiam: 1

Alice Smith (“Smith”) sue d her employer, Centra Benefit

Services (“Centra Benefit”), for violating her rights under Title

VII. She appeals the district court’s grant of summary judgment

for Centra Benefit. For the following reasons, we affirm.

BACKGROUND

In 1995, Smith served as the temporary Unit Leader in Centra

Benefit’s Medical Review Department. Smith, a black female, was

one of three applic ants for the permanent Unit Leader position.2 The Wonderlic test is a problem-solving test.

2 After interviewing the applicants, Centra Benefit selected Janice

Broocks (“Broocks”), a white female, as Unit Leader.

Smith filed a complaint with the Equal Employment Opportunity

Commission (“EEOC”), alleging that Centra Benefit promoted a less

qualified white employee. Further, she alleged that she was denied

the promotion because of her race. After the EEOC mailed Smith a

“right to sue” letter, she filed a pro se complaint against Centra

Benefit. In her complaint, she alleged that Centra Benefit

discriminated against her by giving the promotion to a less

qualified white employee. Subsequently, Smith retained an attorney

and amended her complaint to also allege that Centra Benefit’s use

of the Wonderlic test had a disparate impact on black applicants

for the Unit Leader position. 2

Centra Benefit moved for summary judgment. The district court

granted Centra Benefit’s motion. Smith appeals.

DISCUSSION

We review the grant of summary judgment de novo

, using the

sa me criteria used by the district court. S ee Walker v. Sears,

Roebuck & Co. , 853 F.2d 355, 358 (5th Cir. 1988).

I. Disparate Impact Claim

“It is well-settled that courts have no jurisdic tion to

consider Title VII claims as to which the aggrieved party has not

exhausted administrative remedies.” N ational Association of

Government Employees v. City Public Service Board of San Antonio,

Texas

, 40 F.3d 698, 711 (5th Cir. 1994). “[T]he ‘scope’ of the3

judicial complaint is limited to the ‘scope’ of the EEOC

investigation which can reasonably be expected to grow out of the

charge of discrimination.” Sanchez v. Standard Brands, Inc. , 431

F.2d 455, 466 (5th Cir. 1970).

Smith’s disparate impact claim asserted in her amended

complaint alleged that Centra Benefit’s use of the Wonderlic test

has an adverse impact on black applicants for the Unit Leader

position. However, her EEOC charge did not mention Centra

Benefit’s use of the Wonderlic test. Rather, her EEOC charge

alleged that she (1) was not adequately compensated for serving as

a temporary Unit Leader and (2) d id not receive the promotion to

the permanent position because of her race. Reasoning that her

dis parate impact claim was not reasonably related to her EEOC

charge, the d istrict court concluded that it lacked jurisdiction

over Smith’s disparate impact claim.

Smith maintains that the district court erred by granting

summary judgment for Centra Benefit. She contends that her

disparate impact claim is reasonably related to her EEOC complaint

b ecause the EEOC learned about Centra Benefit’s use of the

Wonderlic test during the course of its investigation. Noting that

several cases found the Wonderlic test has a discriminatory impact,

Smith a rgues that the EEOC should have investigated Centra

Benefit’s use of the test. S ee Watkins v. Scott Paper Co.

, 530

F.2d 1159, 1185 (5th Cir. 1976) (stating that the Wonderlic test

“has been shown to be discriminatory in impact in a number of . .

. Title VII cases.”).3 In Gomes v. Avco. Co.

, 964 F.2d 1330, 1334-35 (2nd Cir.

1992), the Second Circuit held that the plaintiff’s disparate

impact claim was reasonably r elated to the disparate treatment

claim alleged in his EEOC charge. G omes is factually

distinguishable from the case at bar. In G omes

, the plaintiff

maintained that the defendant’s eight year experience requirement

had a disproportionate impact on persons of Portuguese descent.

Although the plaintiff’s EEOC charge did not allege disparate

impact, it mentioned the eight year experience requirement. Noting

that the plaintiff brought the eight year requirement to the EEOC’s

attention , the Second Circuit reasoned that the EEOC could have

rea sonably inquired as to whether the requirement had a

d iscriminatory impact. In contrast, Smith’s EEOC charge did not

mention Centra Benefit’s use of the Wonderlic test.

4 We disagree. A disparate impact claim “involve[s] employment

practices that are facially neutral in their treatment of different

groups but that in fact fall more harshly on one group than another

and cannot be just i fied by business necessity.” International

Brotherhood of Teamsters v. United States

, 97 S.Ct. 1843, 1854 n.15

(1977). Smith’s EEOC charge did not mention Centra Benefit’s use

of the Wonderlic test or any other specific employment practice.

Rather, her charge simply alleged that Centra Benefit promoted a

less experienced white employee. Accordingly, we conclude that

Smith’s disparate imp act claim is not reasonably related to her

EEOC charge. S ee Noreuil v. Peabody Coal Co.

, 96 F.3d 254, 258-59

(7th Cir. 1996) (holding that the plaintiff’s disparate imp act

claim was not reasonably related to the retaliation claim set forth

in his EEOC charge because the charge faile d to allege that the

defendant’s policies were discriminatory). 3

II. Disparate Treatment Claim

To establish a prima facie discrimination case, a plaintiff

must show that: (1) she is a member of a protected class; (2) she5

sought and was qualified for an available employment position; (3)

she was rejected for that position; and (4) the employer continued

to seek applicants with the plaintiff’s qualification s. See

LaPierre v. Benson Nissan, Inc.

, 86 F.3d 444, 448 (5th Cir. 1996).

“Once established, the plaintiff’s prima facie case raises an

inference of intentional discrimination. The burden of production

t hen shifts to the defendant to articulate a legitimate,

nondiscriminatory reason for the challenged employment action.”

Id.

If the defendant meets its burden, the presumptio n of

discrimination disappears. See Rh odes v. Guiberson Oil Tools , 75

F.3d 989, 993 (5th Cir. 1996) (en banc). “However, the plaintiff

is acc orded the opportunity to demonstrate that the defendant’s

articulated rationale was merely a pretext for discrimination.”

Id. A plaintiff can avoid summary judgment by (1) creating a fact

issue as to whether the defendant’s stated reason is what actually

motivated the defendant and (2) creating a reasonable inference

that the plaintiff’s race was a determinative factor in the adverse

employment action. See id. at 994.

For purposes of the summa ry judgment motion, the district

court assumed that Smith established a prima facie discrimination

case. The district court concluded that Centra Benefit’s proffered

reason for promoting Broocks instead of Smith--that Broocks had

better leadership skills and experience--satisfied Centra Benefits

burden of production. Therefore, the presumption of discrimination

disappeared and Smith was given an opportunity to show that the6

proffered reason was a pretext for discrimination. The district

court concluded that Smith failed to produce any evidence that

Centra Benefit’s proffered reason for promoting Broocks instead of

Smith was pretextual and failed to produce evidence indicating that

Centra Benefit was motivated by discriminatory intent.

Smith contends that the district court erred by granting

summary judgment for Centra Benefit on her disparate tr eatment

claim because of disputed issues of material fact. She maintains

that issues of fact exist as to (1) whether she was more qualified

than Brooks and (2) whether Centra Benefit used the Wonderlic test

in making its decision. We disagree. Smith’s brief fails to point

to any evidence indicating that Centra Benefit was motivated by

discriminatory intent. Therefore, the district court properly

granted summary judgment for Centra Benefit.

CONCLUSION

We affirm the summary judgment in favor of Centra Benefit.

AFFIRMED.